Summary 2010 WY 15

Summary of Decision issued February 16, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Vigil v. State

Citation: 2010 WY 15

Docket Number: S-09-0053

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Vigil: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Vigil challenged his conviction of one count of third-degree sexual abuse of a minor contending that the district court erred in admitting evidence in violation of W.R.E. 404(b).

Timing of 404(b) hearing: The Court has expressed a firm preference for the pretrial determination of issues concerning uncharged misconduct however it has never found reversible error simply because the 404(b) hearing was not held prior to trial. Vigil had ample notice of the State’s intent to introduce the evidence. He failed to establish that he was prejudiced in any manner as a result of the timing of the hearing.
Admissibility of 404(b) evidence: Vigil contended that the district court abused its discretion by admitting evidence of a similar prior conviction. The State intended for the evidence to establish that the touching was made with the intent of sexual arousal and to prove that touching was not the result of accident or mistake. Vigil also contended that the district court did not properly weigh the probative value of the evidence against the danger for unfair prejudice. The record demonstrated that the district court conducted an appropriate analysis of the 404(b) evidence and it established a legitimate basis for the ruling.
Jury instruction: Vigil contended the limiting instruction given by the district court allowed the jury to consider the prior conviction for improper purposes. He asserted that the instruction was erroneous because the State did not seek to use the uncharged misconduct as evidence of motive or plan. The Court has previously recognized that the State and the district court must identify the specific purpose of the 404(b) evidence. Vigil failed to establish that he was prejudiced in any manner by the inclusion of the words “motive” and “plan” in the limiting instruction. Additionally, he did not demonstrate that inclusion of the word “plan” in the instruction impacted the verdict.

Conclusion: Vigil failed to establish that he was prejudiced as a result of the timing of the 404(b) hearing. The district court conducted an appropriate analysis of the evidence and established a legitimate basis for the ruling. Defense counsel and the State both agreed in closing that the jury’s decision should be based upon the credibility of the victim. The jury found her testimony believable.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yg7axs7 .

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